A new amendment into the Basic Law on Human Dignity and Freedom might officially turn Israel into a democracy for Jews only.

Since it’s founding, Israel has claimed – and most of the time was regarded – to be both a Jewish state and a democratic one. In the Israelis’ views, the two elements don’t contradict, but rather complete each other. Criticism on this view has focused on the facts that (a) the Palestinians in the West Bank and Gaza were never granted Israeli citizenship and the civil rights that come with it, and that (b) Israel’s “Law of Return” distinguishes between Jews and non-Jews, as it only allows the former to automatically become Israeli citizens.

Israel’s answer to A is that the West Bank and Gaza are not officially part of the state, and that within the Green Line border, all Israelis, Jews and non-Jews, have full rights. The answer to article B is very similar: yes, we allow Jews into the state, but once someone becomes an Israeli citizen, he enjoys full rights, regardless of his ethnic origin, religious or sex.

A new legislation effort by Yisrael Beitenu (Liberman’s party) might put an end to all this reasoning. This legislation is about to make discrimination and racial segregation a part of the legal codex of Israel. If passed, it will make it very hard to view Israel as a democracy – at least in the common meaning of the term in the West – regardless of the situation in the West bank.

Here is a little background:

There are thousands of Israeli Arab Citizens who are married to non-Israeli Palestinians or Arabs from other states. On July 2003 the Knesset enacted the Nationality and Entry into Israel Law (Temporary Order), which prohibits the granting of any residency or citizenship status to Palestinians from the 1967 Occupied Palestinian Territories who are married to Israeli citizens. In 2007 the law was also applied to Israeli citizens who marry residents of Lebanon, Syria, Iran or Iraq and/or any place defined by the Israeli security forces as where activity is occurring that is liable to endanger Israeli security.

The meaning of this legislation is that Arab citizens can’t enjoy their right to family life if they chose to marry a non-Israeli – as the non-Israeli partner does not receive an Israeli citizenship, or even the right to reside in Israel. In most cases, the couple is force either to leave the country or to live separately.

Officially, it were security concerns that led to the 2003 and 2007 bills; but this was probably just an excuse, since even before the new law was accepted the Ministry of Interior had the authority to refuse citizenship to any person which is suspected of presenting a security threat without a need to justify its decision. More likely that it was the demographic logic that led to the legislation, with the will to simply prevent Arabs from entering the state, and even forcing them to leave, playing the central part, and security issues only coming later. This assumption is supported by most of the public statements made during the debate on the law.

There is a point here which must be made clear: by refusing to allow a Palestinian woman who married an Israeli to immigrate to Israel, it is not the woman’s right who is violated, but the man’s. In all democracies, each citizen has the right to marry whoever he whishes to and to live with him or her on their own state. The new law takes this right away from the Arab population, while still granting it to the Jewish one. It distinguishes between the rights of citizens to family life based on their ethnicity.

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Since 2003, several human right groups are waging a legal campaign against the Citizenship Law, claiming that it stands in contradiction to the Basic Law on Human Dignity and Freedom. “Basic Laws” are the closest thing Israel has to a constitution.

In a famous 6-5 split decision, the Supreme Court dismissed in 2006 the petitions against the Citizenship Law. However, the court harshly criticized the Law, with Justice Edmond Levi, who voted with the majority, writing that this is only a temporary approval, and that “a different arrangement” must be reached. The chief justice Aharon Barak voted with the minority against the Citizenship Law. The Supreme Court also allowed the petitioners to bring their case before it again in the future, and the common assumption is that it will eventually rule the Citizenship Law as unconstitutional.

And this is exactly what the current Knesset is trying to prevent. As Jonathan Liss reports in Haaretz, 44 MKs, among them members from the opposition party of Kadima, are backing an amendment proposed by Rotem (Yisrael Beiteinu) to the Basic Law on Human Dignity and Freedom, intended to bring it into line with the Citizenship Law. The coalition will decide this Sunday whether to back the amendment, thus promising it an automatic majority in the Knesset.

In other words, the Knesset will have the Israeli constitution include an article which distinguishes between the right to family life of Jews and Arabs.

There are currently four new petitions against the Citizenship Law being heard at the Supreme Court, but as Haaretz reports, the new amendment will make it impossible for the court to rule in favor of them. The whole legal process will become meaningless.

[MK David] Rotem says he sees no problem with the Knesset intervening in real time with court deliberations. “If I were to discover that some law stating that the sun must rise at 8 A.M. could be interpreted by the court as stating that the sun must rise at 8 P.M., I would immediately go to court and say that that was not the intent of the lawmaker.”

… Rotem says he does not want to limit the court, but rather “to enshrine legislation that has already passed. The Knesset’s job is to make the laws, and the court’s job is to interpret it.”

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Even many of Israel’s supporters don’t deny that Arabs are subject to some degree of discrimination in Israel. But most of them argue that this should be seen in the right context: Israel is a young democracy, located in a hostile environment. The Arabs took part in the fight against the state in 1948; the journey to integrate them has been going on since, with some success. Plus, almost every democracy discriminate minorities. The world, Israelis would say, should judge us not just on what’s happening now, but based on where we are heading, and on our ideals.

But when amendments to the constitution are the issue, it is precisely Israel’s ideals which are concerned. And if passed, the new amendment will show exactly where Israel is heading.

If the current amendment is accepted, it will be the Israeli legal codex – not some political practices, which come and go – that will make Israel an ethnic democracy, or “a democracy for Jews only”. This will make it much harder to fight the claim that Israel is indeed becoming – if it’s not already – an Apartheid state.